Aziz Huq on the Untenable Compromise in Fulton v. Philadelphia
The Court’s Religious Liberty ‘Compromise’ is Actually a Victory for the Right
The Supreme Court on Thursday handed a narrow victory — unanimous in result but not reasoning — to a Catholic foster-care agency in Philadelphia that refused on religious grounds to place children in same-sex households. A coalition of liberal and conservative judges seemed to have crafted a compromise of sorts — one that grants organizations contracting with governments some freedom to deny services to gay and lesbian clients for religious reasons. Yet the decision did not go as far as the most conservative members of the court would like in redefining religious liberty.
The compromise in Fulton v. Philadelphia is built on sand. It invites extensive and messy litigation by religious entities seeking to discriminate or impose their views of sexual morality on nonbelievers. That litigation will thwart efforts to balance competing values. Rather than tamping down the culture war between the conservative religious lobby and its progressive opponents, Fulton is likely to fuel grievances on both sides.
An appeals court had already ruled that Philadelphia was justified in excluding Catholic Social Services, the foster-care group, from the roster of contractors the city used to place children in foster care; the city has rules that bar these contractors from discriminating on the basis of sexual orientation, and the Catholic group avowedly does that. But Chief Justice John G. Roberts Jr. — joined by the court’s liberals as well as Justices Brett M. Kavanaugh and Amy Coney Barrett — observed that the relevant anti-discrimination requirement had a caveat: A contractor is bound by those rules “unless an exemption is granted” by the relevant city officials.
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